On Application por Rehearing.

The opinion of the court was delivered by

We discuss this application only for the purpose of correcting a very grave misconstruction of our opinion into which counsel has fallen. We have not held, and we are far from holding, that the plea of contributory negligence by a defendant sued for negligence, operates an admission of the negligence charged; nor does the language of our opinion admit of any such construction. We said: “In alleging contributory negligence, defendant admits that there is an issue of negligence between it and the plaintiff; not between plaintiff and a third party.” The admission that there is an issue of negligence is very different from, and indeed contradictory of, an admission of the negligence itself, which latter admission would eliminate and destroy the issue of negligence.

Rehearing refused.